Citation Nr: 0925405
Decision Date: 07/08/09 Archive Date: 07/21/09
DOCKET NO. 04-41 860A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUE
Entitlement to an effective date earlier than October 31,
2000, for the grant of service connection for post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
James A. DeFrank, Associate Counsel
WITNESS AT HEARING ON APPEAL
Appellant
INTRODUCTION
The Veteran served on active duty from April 1968 to April
1970. This case comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2003 rating decision issued by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Togus, Maine which, in pertinent part, denied entitlement
to an effective date earlier than October 31, 2000, for the
grant of service connection for PTSD.
The Veteran underwent an RO hearing at the Baltimore RO in
February 2006. The transcript of the hearing is associated
with the claims file.
The Veteran requested a Board hearing in Washington, D.C. and
one was scheduled for June 2009. However, the Veteran wrote
in a May 2009 letter that he requested that the hearing was
cancelled, and indicated that he would like to have his case
reviewed by the Board without requesting a change in the
hearing date. His hearing request is therefore deemed
withdrawn. See 38 C.F.R. § 20.704(c),(e) (2008).
As a final preliminary matter, the Board notes that, during
the pendency of the appeal, the Veteran's claims file was
transferred to the jurisdiction of the Baltimore RO, which
certified the case for appellate review.
FINDINGS OF FACT
1. The Veteran's initial claim for service connection for
PTSD was received on November 13, 1984.
2. Service connection for PTSD was initially denied in an
unappealed August 1985 rating decision; that decision is
final.
3. An application to reopen the claim for service connection
for PTSD was received on October 31, 2000.
4. Service connection for PTSD was granted in an October
2002 rating decision; the evidence warranting reopening of
the claim included a service department record not previously
associated with the claims file.
CONCLUSION OF LAW
The criteria for an effective date of November 13, 1984, for
the award of service connection for PTSD have been met. 38
U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156(c)(3), 3.400
(2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations imposes obligations on VA to provide
claimants with notice and assistance. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R §§
3.102, 3.156(a), 3.159, 3.326(a) (2008).
The courts have held that once service connection is granted
the claim is substantiated, additional VCAA notice is not
required; and any defect in the notice is not prejudicial.
Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap
v. Nicholson, 21 Vet. App. 112 (2007).
The United States Court of Appeals for Veterans Claims
(Court) has elaborated that filing a notice of disagreement
begins the appellate process, and any remaining concerns
regarding evidence necessary to establish a more favorable
decision with respect to downstream elements (such as an
effective date) are appropriately addressed under the notice
provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v.
Peake, 22 Vet. App. 128 (2008). Where a claim has been
substantiated after the enactment of the VCAA, the appellant
bears the burden of demonstrating any prejudice from
defective VCAA notice with respect to the downstream
elements. Id. There has been no allegation of prejudice in
this case.
All pertinent evidence has been obtained and further
examinations are not required. Further assistance in
substantiating the claim is not required.
Legal Criteria
In general, the effective date of an evaluation and award of
pension, compensation or dependency and indemnity
compensation based on an original claim, a claim reopened
after final disallowance, or a claim for increase will be the
date of receipt of the claim or the date entitlement arose,
whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. §
3.400.
The effective date of an award of service connection based on
new and material evidence received after a final adjudication
will be the later of the date entitlement arose or the date
of receipt of the reopened claim unless the new and material
evidence consists of service department records, in which
case the effective date will be the later of the date
entitlement arose or the date of receipt of the earlier
claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.
38 C.F.R. § 3.156(c) Service department records. (1)
Notwithstanding any other section in this part, at any time
after VA issues a decision on a claim, if VA receives or
associates with the claims file relevant official service
department records that existed and had not been associated
with the claims file when VA first decided the claim, VA will
reconsider the claim, notwithstanding paragraph (a) of this
section. Such records include, but are not limited to:
(i) Service records that are related to a claimed in-service
event, injury, or disease, regardless of whether such records
mention the veteran by name, as long as the other
requirements of paragraph (c) of this section are met;
(ii) Additional service records forwarded by the Department
of Defense or the service department to VA any time after
VA's original request for service records; and
(iii) Declassified records that could not have been obtained
because the records were classified when VA decided the
claim.
(3) An award made based all or in part on the records
identified by paragraph (c)(1) of this section is effective
on the date entitlement arose or the date VA received the
previously decided claim, whichever is later, or such other
date as may be authorized by the provisions of this part
applicable to the previously decided claim.
Analysis
The Veteran's initial claim for service connection for PTSD
was received on November 13, 1984. The claim was denied in
an August 1985 rating decision on the basis that the record
showed no evidence of a life-threatening incident or any
awards for valor. It was further noted that PTSD was not
shown. The Veteran did not appeal the denial of his claim
and the rating decision became final.
On October 31, 2000, the Veteran submitted a letter to the RO
and stated that he wished to reopen his claim for entitlement
to service connection for PTSD. Entitlement to service
connection for a neuropsychiatric disorder, rated as PTSD,
was granted in an October 2002 rating decision, effective
October 31, 2000. The October 2002 rating decision states
that a recently received amendment (DD-215) to the Veteran's
separation document (DD-214) showed that he had received
decorations which were conclusive proof that he had
experienced combat, confirming a stressor. The October 2002
rating decision provides no other basis for the award of
service connection for PTSD. The addendum to the Veteran's
DD-214 unarguably must be considered a service department
record as contemplated by 38 C.F.R. § 3.156(c). Accordingly,
an effective date of November 13, 1984, the date VA received
the previously denied claim, for the award of service
connection for PTSD is warranted.
ORDER
Entitlement to an effective date of November 13, 1984, for
the grant of service connection for post-traumatic stress
disorder (PTSD) is granted.
____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs